12 Responses to “* No documents were produced today indicating that June 27, 2001 shipment of 340 ml. Ames was ever irradiated and shipped out”

DXersaid

Respectfully, USAMRMC FOIA is inaptly invoking Exemption (b)(6) in connection with processing these shipping records. There is no “clearly unwarranted invasion of privacy” warranting redaction under (b)(6).

Exemption 6

Personal privacy interests are protected by two provisions of the Freedom of Information Act, Exemptions 6 and 7(C).1 Under the FOIA, “privacy encompass[es] the individual’s control of information concerning his or her person.”2 Exemption 6 protects information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.”3

In order to determine whether Exemption 6 protects against disclosure, an agency should engage in the following two lines of inquiry: first, determine whether the information at issue is contained in a personnel, medical, or “similar” file covered by Exemption 6; and, if so, determine whether disclosure “would constitute a clearly unwarranted invasion of personal privacy” by balancing the privacy interest that would be compromised by disclosure against any public interest in the requested information.5

When engaging in this analysis, it is important to remember that the Court of Appeals for the District of Columbia Circuit has declared that “‘under Exemption 6, the presumption in favor of disclosure is as strong as can be found anywhere in the Act.'”6

To warrant protection under Exemption 6, information must first meet its threshold requirement; in other words, it must fall within the category of “personnel and medical files and similar files.”8

These shipping records are not “similar files” where providing the name would constitute a “clearly unwarranted invasion of privacy.”

Only if it is determined that these files constitute “similar files” do we continue with the analysis under (b)(6).

“Once it has been established that information meets the threshold requirement of Exemption 6, the focus of the inquiry turns to whether disclosure of the records at issue “would constitute a clearly unwarranted invasion of personal privacy.”9 This requires a balancing of the public’s right to disclosure against the individual’s right to privacy.10 First, it must be ascertained whether a protectible privacy interest exists that would be threatened by disclosure.11 If no privacy interest is found, further analysis is unnecessary and the information at issue must be disclosed.12
On the other hand, if a privacy interest is found to exist, the public interest in disclosure, if any, must be weighed against the privacy interest in nondisclosure.13

See Associated Press v. DOD, 554 F.3d 274, 291 (2d Cir. 2009) (“‘Only where a privacy interest is implicated does the public interest for which the information will serve become relevant and require a balancing of the competing interests.'” (quoting FLRA v. VA, 958 F.2d 503, 509 (2d Cir. 1992))); see also NARA v. Favish, 541 U.S. 157, 171 (2004) (“The term ‘unwarranted’ requires us to balance the family’s privacy interest against the public interest in disclosure.”) (Exemption 7(C)); see also Ripskis, 746 F.2d at 3.

DXersaid

“Please note:
In accordance with the July 24, 2013 Department of Justice Guide to the Freedom of Information Act, Exemption 6, per the Department of Defense Director for Administration and Management Memorandum for DOD FOIA Offices 1-2 (Nov. 9, 2001), Federal employees involved in law enforcement, as well as military personnel and employees in sensitive occupations, do possess, by virtue of the nature of their work, substantial privacy interests in their identities and work addresses. Substantial privacy interests cognizable under the FOIA are generally found to exist in such personally identifying information as a person’s name, address, image, computer user ID, phone number, date of birth, criminal history, medical history, and social security number. In light of this substantial privacy interest, the Department of Defense now regularly withholds personally identifying information about all military and civilian employees with respect to whom disclosure would “raise security or privacy concerns.” It is important to note that the Supreme Court has declared that the privacy interest inherent in Exemption 6 “belongs to the individual, not the agency holding the information.” Furthermore courts afford foreign nationals the same privacy rights under the FOIA as they afford U.S. citizens.”

DXersaid

My sense is that the appeals person is as wonderful as the FOIA officer — or else she could not have remained so wonderful and efficient for so many years.

The USAMRMC official who has heard FOIA appeals in the past — such as this (b)(6) issue — often will come to Upstate NY on Thanksgiving to visit a relative.
Accordingly, my typical glib approach was to offer to bring black olives and meet him at the airport rather than cite 2015 District of Columbia case precedent.

But this sort of balancing really does need to be viewed under all the facts — and the White House, under these facts, has urged that the information be provided to the maximum extent possible.

That is, the offical with jurisdiction over the issue on appeal should authorized the wonderful and efficient FOIA officer to eliminate unnecessary (b)(6) redactions unless a “clearly unwarranted invasion of privacy.”

“As a research institute, USAMRIID does not routinely irradiate BA spores. The irradiated BA spore preparations were used to create antibodies or to support activities in the Diagnostic Systems Division.”
[John Ezzell was the DSD person, not Bruce Ivins].
***

The current estimate of inactivated BA spore preparations produced at USAMRIID is about 26 (<10 samples since 2009).

DXersaid

FAIL: How “Comprehensive” was the DOD Laboratory Review if did not even address this shipment — or the failure of the USAMRIID radiation office to keep the record of any radiation under its protocol for radiation?

The people in charge of Fort Detrick’s biocontainment labs are confident in their operations, even as safety breaches at other federal agencies lead Congress to question lab security.

In response to those breaches, the director of the Department of Homeland Security’s lab at Fort Detrick said he worked with staff to verify that their training was up-to-date and that the recent incidents would become a “teaching moment.”

“It starts with expectations, it starts with leadership,” the director, Pat Fitch, said Tuesday at the National Biodefense Analysis and Countermeasures Center. NBACC is the federal government’s leading organization for forensic analysis of bioterrorism attacks or bio-crime and often assists the FBI in its investigations.

Shawn M. Boesen, chief of the Safety, Radiation and Environmental Division at the U.S. Army Medical Research Institute of Infectious Diseases, said his staff continuously reviews their safety process, but no plans exist to make changes to policy as a direct result of the June and July safety breaches involving anthrax at the Centers for Disease Control and Prevention and smallpox at the Food and Drug Administration.

The National Institute of Allergy and Infectious Diseases’ Integrated Research Facility also has high-security labs at Fort Detrick. Peter Jahrling, the facility’s chief scientist, said his staff have been reminded of standard operating procedures and regulations “and the consequences of non-compliance.”

The director of the National Institutes of Health, which oversees NIAID-IRF, asked in a memo that all laboratory storage areas be carefully inventoried, Jahrling said.

Building a culture of safety

Bob Hawley, a consultant and former biosafety officer at USAMRIID and the U.S. Army Medical Research and Materiel Command, said he is confident that accidents similar to the one at CDC will not occur at Fort Detrick’s labs.

“Just because it happens in one laboratory — which may very well be the flagship of the United States — I don’t see any reason for any additional regulations to be placed upon the other facilities,” he said. “We have sufficient enough guidelines.”

Beth Willis, chairwoman of Frederick’s Containment Lab Community Advisory Committee, said despite all the rules, there is still an unpredictable variable in lab safety.

“Human error is almost always the problem,” she said. “The community has always assumed that there is good equipment and good procedures.”

Jahrling and Boesen said even a bulletproof safety policy may not be enough to eliminate human error.

“Human error is a factor that we consider in our risk assessment process,” Boesen said. “It can be reduced considerably through measures to reduce the probability and severity of consequences, but it cannot be completely eliminated.”

USAMRIID’s safety protocols are vetted through its safety office and a panel of experts on the subject matter, he said.

NBACC’s high-security labs were first approved in 2011 for work with select agents. NIAID-IRF received its select agent certification in March.

NBACC published a paper in 2013 on a “personnel reliability program” that would guide staff to report incidents promptly without putting undue pressure on the reporter. The program was implemented at NBACC in 2010.

According to the paper, in a typical month at NBACC, about 12 incident reports lead to staff being restricted from lab access for purposes that are “either medical or personal in nature.” Another 12 incident reports do not require a restriction of lab access. An average of seven more reports each month result in no action under the personnel reliability program.

According to Fitch, it has taken a concerted effort to build safety expectations at NBACC. He is pleased with the current safety culture.

“We’re all in this together,” Fitch said. If a single staff member fails to report a potentially dangerous incident, “we’re all paying the price.”

A lack of common standards

A long list of inspectors, including those from the CDC, the Nuclear Regulatory Commission and the Occupational Safety and Health Administration, ensure compliance with regulations at NBACC. A similar list for USAMRIID includes the Army’s inspector general.

At the recent congressional hearing, some committee members suggested that, in light of the safety breach, another agency should oversee the CDC’s research labs.

Hawley said a replacement inspector shouldn’t be necessary for the CDC or Fort Detrick’s labs.

“The competency is there,” Hawley said. “I think the thought is that the fox is watching the henhouse, but the CDC is inspected by outside agencies for a lot of the work that they’re doing.”

The CDC’s inspection and research arms are separate. Fitch and Edwin said CDC inspectors are thorough.

The Government Accountability Office has long decried the lack of design and construction standards across high-security biocontainment labs and advocates the formation of an independent agency to oversee them.

According to Hawley, biocontainment labs are built based on risk. Some need to withstand hurricanes, and others are in more earthquake-prone areas.

“We cannot have a cookie cutter for building a laboratory,” he said.

Clem Gaines, spokesman for the Army Corps of Engineers, said the corps is building USAMRIID’s new labs in accordance with the CDC’s Biosafety in Microbiological and Biomedical Laboratories handbook, regarded as the industry standard.

The GAO said in a 2013 report that the lack of national standards “raised concerns and increased the risk of laboratory accidents.”

The CDC’s handbook provides guidance, the report states. “However, that guidance does not equate to standards that should be adhered to or ways to determine if such standards have been achieved.”

“Such standards need not be a constraining ‘one-size-fits-all’ model,” the report states.

The diverse nature of the agencies that operate high-security biocontainment labs may pose a challenge for a single agency’s oversight, Jahrling said.

“It is important, however, that there is some type of oversight of whoever has this responsibility,” he said. “Like the labs, the oversight bodies should also be held accountable for their activities.”

DXersaid

Richard J. Hawley was radiation chief in 2001; his philosophy was to keep records forever (even though CDC only required they be kept for a certain number of years). Wasn’t his office required to keep the records confirming the radiation? Under the Standard Operating Procedure (“SOP”), it was the radiation chief who was responsible for the radiation.

DXersaid

In a follow-up response when I asked why there were no documents evidencing irradiation, the ever-efficient and articulate FOIA officer wrote:

“I sent an email to RIID saying: What he is saying is there is no proof it was irradiated. It was shipped from Dugway to RIID for Irradiation as shown on page 1, but he is looking for proof it was irradiated as discussed on page 10, and maybe re-shipped?
The response I just received from RIID is: “I don’t have those documents in my possession …”

DXersaid

Did the FBI take documents relating to this shipment and not return them to USAMRIID — as suggested by USAMRIID in its response this week? (In the part of the email I redacted).

Who is responsible for this playing hide-the-ball at the DOJ/FBI? For example, refusing to produce or give back a copy of Bruce Ivins’ Notebook 3655 to USAMRIID?

We can givie the DOJ/FBI the benefit of the doubt and presume that the failure to return Ivins’ key notebooks to USAMRIID was inadvertent. DOJ/FBI, however, now should return a copy of the notebooks as if careers depended on it.

Former FBI officials Christian Hassell and Vahid Majidi — if they really want to be transparent and accountable, as they claim — should pick up the phone and point out that the notebooks and what happened to this shipment of b. anthracis Ames should not be concealed any longer.

Bruce Ivins’ email is nowhere mentioned in any of the documents produced this week. (Having passed, his name is not subject to a (b)(6) redaction.